Chottey Lal vs State
2013 Latest Caselaw 4612 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                               DECIDED ON : 4th October, 2013

+                        CRL.A.181/2000

      CHOTTEY LAL                                   ....Appellant
              Through :         Mr.Ravi Mehta, Advocate.

                                versus

      STATE                                             ....Respondent.
                   Through :    Mr.M.N.Dudeja, APP.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J. (ORAL)

1. The appellant- Chottey Lal challenges conviction under

Section 397/34 IPC in Sessions Case No.97/1998 arising out of FIR No.

166/1994 PS Vivek Vihar. Vide order dated 07.09.1999, he was

sentenced to undergo RI for seven years with fine ` 5,000/-.

2. On the night intervening 13/14.06.1994, Daily Diary (DD)

was recorded at Police Post Anaj Mandi on getting information of dacoity

in House No.5/34, Bara Bazar, Shahdara. SI Surender Dev with police

staff went to the spot. He recorded statement of Vinod Kumar Bansal who

disclosed that at around 03.00 A.M., five boys entered the house; two

were having knives; two were armed with iron rod and one was having

iron punja. He named Ram Gopal @ Kalia who used to work in an

adjacent shop at Lahori Gate, Delhi as one of the assailants. He assigned

specific role to him i.e. he pointed out knife at his neck and demanded

keys from his wife. They were threatened by the assailants. Jewellery and

cash was robbed. VCP and stereo deck were recovered from Chottey Lal

who was apprehended near the spot. Other assailants fled the spot.

3. During the course of investigation, the police apprehended

the assailants. Chottey Lal was apprehended at the spot and from his

possession some robbed articles were recovered. On completion of the

investigation, a charge-sheet was submitted against six accused persons,

Chottey Lal, Ram Gopal, Ram Kilari, Lal Singh, Bal Kishan & Udal.

They were duly charged and brought to trial. The prosecution examined

fifteen witnesses. In their 313 Cr.P.C. statements, the accused pleaded

innocence and false implication. On appreciating the evidence and

considering the rival contentions of the parties, the Trial Court, by the

impugned judgment, acquitted Ram Kilari, Lal Singh, Bal Kishan and

Udal. Chottey Lal and Ram Gopal were convicted and sentenced. Being

aggrieved, Chottey Lal has preferred the appeal. It is relevant to note that

co-accused Ram Gopal had preferred Crl.A.No.561/1999 to impugn the

judgment in question. Vide order dated 06.03.2013 this Court accepted

the appeal and conviction and sentence of Ram Gopal were set aside.

Chottey Lal was apprehended at the spot and from his possession some

robbed articles were recovered. During the course of arguments, counsel

for the appellant on instructions stated at Bar stated that the appellant has

opted not to challenge the findings of the Trial Court for conviction under

Section 392 IPC. Section 397 IPC is not attracted as no weapon was used

by Chottey Lal in the incident. Learned Additional Public Prosecutor

states that Section 397 IPC is not applicable qua the appellant as he was

not in possession of any deadly weapon and it was not used by him. Since

the appellant was not armed with any deadly weapon and it was not used

by him in the incident, he cannot be sentenced with the aid of Section 397

IPC. The conviction under Section 397 is set aside while confirming

under Section 392 IPC.

4. Nominal roll dated 19.09.2013 reveals that Chottey Lal has

undergone incarceration for six years, three months and seventeen days.

He also earned remission for two months and twenty seven days as on

22.08.2013. The unexpired portion of sentence was five months and 16

days as on 22.08.2013. He is not involved in any criminal case and has

clean antecedents. His overall jail conduct was satisfactory. He was

released on regular bail on 22.08.2013. The offence has since altered to

Section 392 IPC only. Considering all these facts and circumstances of

the case the appellant-Chottey Lal is sentenced to undergo the period

already spent by him in this case.

5. The appeal stands disposed of in the above terms. The bail

bond and surety bond of the appellant stand discharged. The Trial Court

record along with the copy of this Order be sent back forthwith. The

Superintendent Jail be informed.

(S.P.GARG) JUDGE October 04, 2013 sa